Singapore legislation
Section 23
Section 23
Power to act for protection of charities
(1)
Where, at any time after the Commissioner has instituted an inquiry under section 10 with respect to any charity, the Commissioner is satisfied —
that there is or has been any misconduct or mismanagement in the administration of the charity; and
that it is necessary or desirable to act for the purpose of protecting the property of the charity or securing a proper application for the purposes of the charity of that property or of property coming to the charity,the Commissioner may, with the consent of the Attorney‑General, do one or more of the following things:
by order remove any trustee, governing board member, officer, agent or employee of the charity who has been responsible for or privy to the misconduct or mismanagement or has by his or her conduct contributed to it or facilitated it;
by order establish a scheme for the administration of the charity;
despite anything in the governing instruments of the charity, by order restrict the transactions which may be entered into, or the nature or amount of the payments which may be made, in the administration of the charity without the Commissioner’s approval.
(2)
Where, at any time after the Commissioner has instituted an inquiry under section 10 with respect to any charity, the Commissioner is satisfied —
that there is or has been any misconduct or mismanagement in the administration of the charity; or
that it is necessary or desirable to act for the purpose of protecting the property of the charity or securing a proper application for the purposes of the charity of that property or of property coming to the charity,the Commissioner may, with the consent of the Attorney‑General, do one or more of the following things:
by order suspend any trustee, governing board member, officer, agent or employee of the charity from the exercise of his or her office or employment pending consideration being given to his or her removal (whether under this section or otherwise);
by order appoint such number of additional governing board members or key officers as the Commissioner considers necessary for the proper administration of the charity;
by order vest any property held by or in trust for the charity in the Public Trustee, or require the persons in whom the property is vested to transfer it to the Public Trustee, or appoint any person to transfer the property to the Public Trustee;
order any person who holds any property on behalf of the charity, or of any trustee for it, not to part with the property without the approval of the Commissioner;
order any debtor of the charity not to make any payment in or towards the discharge of the debtor’s liability to the charity without the approval of the Commissioner;
by order restrict (despite anything in the governing instruments of the charity) the transactions which may be entered into, or the nature or amount of the payments which may be made, in the administration of the charity without the approval of the Commissioner;
by order appoint (in accordance with section 25) a receiver and manager in respect of the property and affairs of the charity.
(3)
The references in subsections (1) and (2) to misconduct or mismanagement (despite anything in the governing instruments of the charity) extend to the employment for remuneration or reward of persons acting in the affairs of the charity, or for other administrative purposes, of sums which are excessive in relation to the property which is or is likely to be applied or applicable for the purposes of the charity.
(4)
The Commissioner may remove a governing board member or key officer of a charity by order made of the Commissioner’s own motion where the governing board member or key officer —
has been convicted, whether in Singapore or in any other country or territory, and whether before, on or after 1 April 2018, of an offence involving moral turpitude (but not one mentioned in section 28(1)(a)) and the conviction is not spent;
acts as a governing board member or key officer of the charity despite being disqualified under section 28(1) or (6);
is a corporation in liquidation;
lacks capacity (within the meaning of the Mental Capacity Act 2008) to exercise his or her functions as governing board member or key officer;
has not acted, and will not declare his or her willingness or unwillingness to act; or
is outside Singapore or cannot be found or does not act, and his or her absence or failure to act impedes the proper administration of the charity.
(5)
Where a person resigns as a trustee, a governing board member, an officer, an agent or an employee of a charity —
after the Commissioner has instituted an inquiry under section 10 with respect to the charity (whether before, on or after 1 April 2018), but before the Commissioner (with the consent of the Attorney‑General) makes an order under subsection (1)(c) removing the person; or
after the Commissioner has given notice (whether before, on or after 1 April 2018) under section 30(3) of intention to remove the person under subsection (4), but before the Commissioner makes the order,the Commissioner may, if the Commissioner is satisfied that the person is a person against whom the Commissioner would have made an order of removal under subsection (1)(c) or (4) if the person had not resigned, make an order declaring the person as such.
(6)
Section 30 applies to an order under subsection (5) as it applies to an order of removal under subsection (1) or (4).
(7)
Subject to section 47, an order of removal under subsection (1) or (4), and an order under subsection (5), remains in force despite any ground on which the order was made ceasing to exist or have effect (including a conviction becoming spent).
(8)
The Commissioner may, by order made of his or her own motion, appoint a person to be a governing board member or key officer —
in place of a governing board member or key officer removed by the Commissioner under this section or otherwise;
where there are no governing board members, or where by reason of vacancies in their number or the absence or incapacity of any of their number the charity cannot apply for the appointment;
where there is a single governing board member or key officer, not being a corporation, and the Commissioner is of the opinion that it is necessary to increase the number for the proper administration of the charity; or
where the Commissioner is of the opinion that it is necessary for the proper administration of the charity to have an additional governing board member or key officer, because one of the existing governing board members or key officers who ought nevertheless to remain a governing board member or key officer cannot be found or does not act or is outside Singapore.
(9)
The powers of the Commissioner under this section to remove or appoint governing board members or trustees for a charity include the power to make any order with respect to the vesting in or transfer to the governing board members or trustees for a charity of any property as the Commissioner may make on the removal or appointment of a governing board member or trustee for the charity by the Commissioner under section 22.
(10)
Any order under this section for the removal or appointment of a governing board member or trustee for a charity, or for the vesting or transfer of any property, has the like effect as an order made under section 22.
(11)
Section 22(4) applies to orders under this section as it applies to orders under section 22.
(12)
An order of suspension under subsection (2)(c) must be for a fixed period, but the Commissioner may make one or more further extensions of that order, each for a fixed period.
(13)
The total period of suspension under an order of suspension under subsection (2)(c) and every extension under subsection (12) of such an order must not exceed 24 months.
(14)
Without affecting section 47, any order of suspension under subsection (2)(c) and any extension under subsection (12) may make provision for any matter arising out of the suspension; and if there is any inconsistency amongst the provisions made by any of the orders, the latest in time prevails.
(15)
For the purposes of subsection (14), provision may be made in particular —
to enable any person to execute any instrument in the name of the person suspended or to otherwise act for the person suspended; and
in the case of a governing board member of a charity, for adjusting any rules governing the proceedings of the governing board members to take account of the reduction in the number capable of acting.
(16)
Before exercising any jurisdiction under this section (otherwise than by virtue of subsection (2) or (5)), the Commissioner must give notice of his or her intention to do so to —
each of the governing board members; and
in the case of an order —
for the removal of any trustee for the charity or key officer;
for the appointment of an additional trustee for the charity or a key officer; or
for the transfer of any property,each trustee for the charity or key officer concerned,except those who cannot be found or who have no known address in Singapore.
(17)
Before exercising any jurisdiction under subsection (5), the Commissioner must give notice of the Commissioner’s intention to do so to —
the person against whom the Commissioner proposes to make the order under that subsection, unless the person cannot be found or has no known address in Singapore; and
each of the governing board members of the charity from which the person resigned, if the Commissioner thinks it necessary to do so.
(18)
A notice referred to in subsection (16) or (17) may be given by post and, if given by post, may be addressed to the last known address in Singapore of the governing board member or trustee for the charity or key officer or person, as the case may be.
(19)
The Commissioner must, at such intervals as he or she thinks fit, review any order made by the Commissioner under subsection (2)(c), (e), (f), (g), (h) or (i); and if on any such review it appears to the Commissioner that it would be appropriate to discharge the order in whole or in part, he or she must so discharge it (whether subject to any saving or transitional provisions or not).
(20)
Any person who contravenes an order under subsection (2)(f), (g) or (h) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 3 years or to both.
(21)
Nothing in subsection (20) is to be taken to preclude the bringing of proceedings for breach of trust against any governing board member or trustee for a charity in respect of a contravention of an order under subsection (2)(f) or (h) (whether proceedings in respect of the contravention are brought against the governing board member or trustee under subsection (20)).
(22)
This section does not apply to an exempt charity.[25